The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism


“A crocus and fleur-de-lis entwined.
Autonomism forever!:

François Legault’s Nationalist Autonomism

In 2021, the Government of Quebec began releasing its own “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” in 2021[1], which differed from and ostensibly rivalled the Department of Justice’s latest consolidation of the Constitution Acts issued in January 2021.[2] Quebec, for instance, rejected the federal Department of Justice’s long-standing practice of “indirect amendment,” where its lawyers modify the text of the Constitution Act, 1867 to what it ought to say based on statutes which have amended it by implication but not directly. In retrospective, it seems as if Quebec was laying the groundwork for another more ambitious project.

In June 2022, Quebec enacted an Act respecting French, the Official and Common Language of Quebec, which aims to bolster the French language and affirm the existence of Quebeckers as a French-speaking nation.[3] This statute also contains a significant constitutional innovation. The Legislature of Quebec used the Section 45 Amending Procedure (which allows provincial legislatures to alter their provincial constitutions) to insert new sections 90.Q1 and 90.Q2 directly into the Constitution Act, 1867 declaring, respectively, that “Quebeckers form a nation” and that “French is the only official language of Quebec and the common language of the Quebec nation.”[4] The “Q” in the two provisions stands for Quebec. Section 90 falls under Part V of the Constitution Act, 1867, which outlines “Provincial Constitutions.” Furthermore, the Government of Quebec swiftly issued the 2nd edition of its “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” to coincide with the enactment of Bill 96 into law on 1 June 2022.[5] An authoritative governmental consolidation of the Constitution Acts containing Quebec’s new provisions now exists as a reference.

Prior to 2022, provinces had only impliedly repealed or amended provisions in Part V of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure. But Quebec charted a new course, and now Saskatchewan has built on Quebec’s precedent with a bold declaration of its own autonomy against Ottawa through the Saskatchewan First Act. Danielle Smith’s government in Alberta might follow a similar course in the coming weeks for the proposed Alberta Sovereignty Act.

Scott Moe Asserts Saskatchewan’s Autonomy 

Those are some good thinkins’ there, Mr. Legault.

Premier Moe declared as early as November 2021 that he sought autonomy for Saskatchewan on immigration, childcare, and the development of natural resources and spoke of his province as “a nation within a nation.”[6] In the Throne Speech of 27 October 2021, Moe had the Lieutenant Governor declare: “Our goal in this session, and in the years ago, is to build a better Saskatchewan. A stronger Saskatchewan. […] And a more independent Saskatchewan.”[7]

In October 2022, the Moe government set out a more comprehensive plan for asserting Saskatchewan’s autonomy within Confederation under the heading “Saskatchewan First” and cited recent initiatives by Quebec and long-standing arrangements of Quebec and Alberta as inspiration. This year’s Throne Speech said:

In this session, my government will take the following steps to protect and defend Saskatchewan’s economy, jobs and future from constitutional overreach by the federal government.

First, my government will introduce The Saskatchewan First Act to clearly define that Saskatchewan — and Saskatchewan alone — has the exclusive jurisdiction over its natural resources and economic future. This legislation will draw the jurisdictional line and defend that line based on the existing constitutional division of powers. To be clear, this is not about abrogating or ignoring the Constitution. In fact, quite the contrary. It is the federal government that has been intruding on Saskatchewan’s jurisdiction under the Constitution. The Saskatchewan First Act will clarify and defend Saskatchewan’s constitutional right to control our natural resources and our economic future.

Second, my government will amend the province’s Constitution to state — in no uncertain terms — that Saskatchewan continues to retain exclusive jurisdiction over its own natural resources. This will be done by amending The Saskatchewan Act, similar to how Quebec recently unilaterally amended the Constitution to declare that Quebec is a nation and its official language is French.

Third, my government will sign the Saskatchewan-Canada Immigration Accord. The Accord will then be sent to the federal government for its ratification. This Accord would give Saskatchewan similar authority over immigration to that which has long been guaranteed to the Province of Quebec. The growth we are experiencing as a province means we require more autonomy and flexibility over immigration to meet our economic needs and address gaps in the labour market. During this session, my government will further enhance provincial autonomy by introducing legislation enabling the province to collect its own corporate income tax, as is currently done in Alberta and Quebec.[8]

The Moe government tabled Bill 88, An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan on 1 November 2022. Even the long title of the statute borrows from the rhetoric of Premier Legault in Quebec, who frequently describes his legislative program and outlook on federalism as one of nationalist autonomism for Quebec within Canada.

The preamble of the Saskatchewan First Act beautifully summarises Western Alienation from 1905 to the present and legitimates Saskatchewan’s historical grievances against Ottawa in an ironically Quebec-like, Cartesian logic.

WHEREAS the Province of Saskatchewan entered Confederation in 1905;

WHEREAS the Government of Canada retained jurisdiction over all Crown lands and natural resources within Saskatchewan until 1930;

WHEREAS the Government of Canada’s control of Crown lands and natural resources in Saskatchewan did not enable Saskatchewan to be a full partner in Confederation;

WHEREAS Saskatchewan successfully attained full status within Confederation and gained autonomy over its Crown lands and natural resources through the Natural Resources Transfer Agreement, 1930;

WHEREAS Saskatchewan’s exclusive legislative jurisdiction in relation to natural resources was confirmed and strengthened through the introduction in 1982 of section 92A of the Constitution Act, 1867;

WHEREAS the Constitution of Canada grants to Saskatchewan exclusive legislative jurisdiction over several aspects of Saskatchewan’s economy, including exclusive legislative jurisdiction over non-renewable natural resources, forestry resources and the generation and production of electrical energy;

WHEREAS the Government of Canada has unilaterally intruded into core areas of Saskatchewan’s exclusive legislative jurisdiction;

WHEREAS this intrusion causes economic harm and uncertainty to Saskatchewan residents and enterprises;

WHEREAS it is in Saskatchewan’s interest to establish an independent tribunal to identify and assess the nature and extent of economic harm and uncertainty to Saskatchewan residents and enterprises caused by such intrusions;

WHEREAS it is in Saskatchewan’s interest to amend the Constitution of the Province of Saskatchewan in order to affirm Saskatchewan’s exclusive legislative jurisdiction;

AND WHEREAS Saskatchewan resolves to never be less than an equal partner within Confederation again;[9]

The first six recitals of this preamble present facts undeniably true before setting out the Moe government’s current grievances against the Trudeau government in recitals 7 through 11. Interestingly, the preamble does not state outright that Saskatchewan would rely on the amending procedure under Section 45 of the Constitution Act, 1982 to achieve this goal, though the Lieutenant Governor cited this approach in the Throne Speech a few days ago.

The Saskatchewan First Act would amend both the Saskatchewan Act (the baseline of the province’s constitution), and the Constitution Act, 1867 with the same provisions declaring and asserting Saskatchewan’s autonomy. The amendment to the Constitution Act, 1867 takes the following form:

7. – SASKATCHEWAN 

90S.1(1) Saskatchewan has autonomy with respect to all of the matters falling under its exclusive legislative jurisdiction pursuant to this Act. 

(2) Saskatchewan is and always has been dependent on agriculture, and on the development of its non-renewable natural resources, forestry resources and electrical energy generation and production.

(3) Saskatchewan’s ability to control the development of its non-renewable natural resources, its forestry resources and its electrical energy generation and production is critical to the future well-being and prosperity of Saskatchewan and its people.[10]

In the Saskatchewan First Act, Saskatchewan first recognises the existence and legitimacy of sections 90.Q1 and 90.Q2 and then emulates Quebec’s precedent by proposing to add another new section directly to the Constitution Act, 1867 after these sections 90.Q1 and 90.Q2. Saskatchewan has even imitated the notation, calling its provision “section S.1” – with the “S” for Saskatchewan. Section 90 falls under Part V “Provincial Constitutions” of the Constitution Act, 1867. Saskatchewan does not go quite as far as Quebec in declaring that its inhabitants constitute a nation, but it does assert in no uncertain terms that Saskatchewan as a provincial State will exploit its natural resources for the benefit of “its people.”  

Richard Simeon’s timeless thesis on Federal-Provincial Diplomacy – where Ottawa and the provinces treat each other like sovereign States on the international level because of executive federalism and the division of powers – also applies between the provinces and premiers where Ottawa has no involvement.

But what makes Moe’s decision more extraordinary is that only between November 2021 and May 2022 did the Legislative Assembly of Saskatchewan, the House of Commons, and the Senate pass concurring resolutions under the Section 43 Amending Procedure to amend the Saskatchewan Act, part of the Constitution of Canada, through the Constitution Amendment, 2022 (Saskatchewan Act). The proposed Saskatchewan First Act should also amend the Saskatchewan Act by way of the Section 43 Amending Procedure. Perhaps fearing that the House of Commons and Senate would reject this amendment, Premier Moe copied Premier Legault’s precedent from June 2022 and opted for the unilateral Section 45 amending procedure instead.

Conclusion: What Will Ottawa Do?

The “post-national State” of Canada has now, perhaps rather fittingly, given itself a post-modern Constitution: we cannot agree on what the Constitution Acts say because we cannot agree on where the unilateral versus multilateral amending procedures apply. Without a proper legal understanding of the scope of each constitutional amending procedure, multiple versions of the Constitution Acts now compete and will continue to proliferate for validity and supremacy based on political and diplomatic gambits where provinces mutually recognise or Ottawa unrecognises constitutional amendments. For instance, Saskatchewan has recognised Quebec’s amendments from June 2022, but Quebec might choose not to recognise Saskatchewan’s amendment from November 2022 when it produces the third edition of its consolidation – which will surely appear very soon after Quebec’s legislatures adopts Legault’s second Section 45 Amendment exempting parliamentarians in Quebec from swearing the oath of allegiance to the King. This arbitrary political approach calls into question the legitimacy of the constitutional order itself. In particular, no one seems to know – or is willing to enforce – what falls under the bilateral and general multilateral amending procedures versus the respective unilateral federal and provincial procedures.

The federal Department of Justice produced its most recent consolidation of the Constitution Acts, 1867-1982 in January 2021 and tends to release new consolidations every five to ten years. No doubt some lively discussions will take place amongst federal lawyers on whether the federal Department of Justice should recognise the legitimacy of the unilateral constitutional amendments which Quebec and Saskatchewan (and soon Alberta) have promulgated and asserted when it produces its next consolidation in a few years. The Section 45 Amending Procedure and disagreements over whether provinces can invoke it to amend the text of the Constitution Act, 1867 directly could become a flashpoint for further Western Alienation and even sow the seeds of the third referendum in Quebec if Ottawa and the provinces continue to clash. We might soon look back on the decade of comity and peaceful federal-provincial relations under Stephen Harper with nostalgic regret soon enough and wonder how it all went wrong.

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Notes

[1] Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982 (Gouvernement du Québec, Lois codifiées au 1e janvier 2021).

[2] Canada. Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 2021).

[3] Act respecting French, the Official and Common Language of Quebec, 2022, chapter 14.

[4] Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982, 2e édition (Gouvernement du Québec, Lois codifiées au 1e juin 2022).

[5] Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982, 2e édition (Gouvernement du Québec, Lois codifiées au 1e juin 2022).

[6] Adam Hunter, “In Calling for ‘Nation within a Nation’, Saskatchewan’s Scott Moe Aims to Emulate Quebec’s Policy Control,” CBC News, 13 November 2021.

[7] Saskatchewan, Legislative Assembly, “Speech from the Throne,” in Debates and Proceedings (Hansard), 29th Legislature, 2nd Session, 27 October 2021, at page 873.

[8] Saskatchewan, Legislative Assembly, “Speech from the Throne,” in Debates and Proceedings (Hansard), 29th Legislature, 3rd Session, 26 October 2022, at pages 2566-2567.

[9] Saskatchewan, Bill No. 88, An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan, 29th Legislature, 3rd Session, 1 November 2022, at pages 1-2.

[10] Saskatchewan, Bill No. 88, An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan, 29th Legislature, 3rd Session, 1 November 2022, at page 4.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Amending Formulas, Constitution (Written). Bookmark the permalink.

2 Responses to The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism

  1. Rand Dyck says:

    OMG! What next? Thanks for keeping us abreast of these disagreeable developments!

    Like

    • What’s next is that Danielle Smith will use the Section 45 Amending Procedure to insert the Alberta Sovereignty Act into section 90 of the CA, 1867. hahahhah! Fun times await.

      But don’t worry: when the NDP wins the next election in 2023, Rachel Notley will table the repeal bill.

      Like

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